ADDITIONAL COMMENTS BY LIBERAL SENATORS
1.1
Liberal senators wish to make the following additional comments in
relation to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws –
Superannuation) Bill 2008 (the Bill).
Amendments to the Bill
1.2
The Bill was referred to the committee on 18 June 2008 for inquiry and report no later than 30 September 2008. On 4 September 2008, a related bill, the Same Sex Relationships (Equal Treatment in Commonwealth Laws –
General Law Reform) Bill 2008 (General Law Reform Bill) was referred to the
committee with a concurrent reporting date.
1.3
The committee held two public hearings into the provisions of the
General Law Reform Bill. At the second of these hearings held on 23 September 2008, the last witness, the Attorney-General's Department, advised that the government
would shortly be introducing amendments to the Bill. The committee was told that
the Attorney-General's Department would endeavour to provide further details to
the committee 'in a timely manner so that it can assist you in your
consideration.'[1]
The Chair of the committee subsequently confirmed that the amendments would be
provided by the government on 8 October 2008. On this basis the Liberal
senators agreed to delay reporting to 14 October 2008 to allow the committee sufficient
time to consider these amendments.
1.4
To date, no further details have been provided by the government, and
the committee has not had the opportunity to consider proposed amendments to
the Bill prior to the adoption and tabling of this report.
1.5
Liberal senators question the process by which a Senate committee is
asked to inquire into a bill, only to be advised that the government intends to
amend the Bill without providing the amendments to the committee. The Senate
should have every opportunity to scrutinise legislation put forward by the
government, including proposed government amendments. Liberal senators consider
this process to be most unsatisfactory.
1.6
Liberal senators urge the Senate to give the amendments to the Bill
their full attention upon introduction, bearing in mind that the committee has
not been given the opportunity to do so.
'Couple relationship'
1.7
The term 'couple relationship' is used in the Bill to cover both
marriages and de facto relationships, including same-sex de facto relationships.
In fact, marriage is treated simply as one of the possible indications that two
persons are in a couple relationship, and it is not even conclusive for this
purpose.
1.8
This novel approach undermines the unique status of marriage in
Commonwealth law.
1.9
It was abandoned by the government in drafting the General Law Reform
Bill, which, in general, refers to marriages and de facto relationships as two
distinct types of relationship, while nonetheless treating them equally.
Recommendation 1
1.10
The use of the term 'couple relationship' in the Same Sex
Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008
should be abandoned, and the Bill should be redrafted using the terminological
approach used in the Same Sex Relationships (Equal Treatment in Commonwealth
Laws – General Law Reform) Bill 2008.
'Child as a product of a relationship'
1.11
The government has displayed extraordinary ineptitude in presenting the
Senate with a series of ad hoc and incompatible approaches to the definitions
of 'child' and 'parent' in Commonwealth law.
1.12
The Bill would introduce a provision that, any child, in relation to a
person, includes '...if, at any time, the person was in a relationship as a
couple with another person (whether the persons are the same sex or different
sexes)—a child who is the product of the person’s relationship with that other
person.'[2]
1.13
The Explanatory Memorandum to the Bill gives two scenarios in which this
definition would apply. These scenarios each involve artificial conception.
Each scenario raises complex questions about the consent required by various
parties in connection with a procedure involving assisted reproductive
technology undergone by one party, and the implications for a possible parent-child
relationship between these parties and any child conceived as a result of that
procedure. The Bill does not adequately address these issues.
1.14
The scenarios canvassed by the Explanatory Memorandum to this Bill do
not refer to surrogacy arrangements. However, the definition may cover some
surrogacy arrangements.
1.15
This lack of clarity is deeply regrettable in a matter as significant as
the legal relationship of parenthood. The government deserves considerable
criticism for having proceeded in this manner.
1.16
A more extensive set of scenarios is given in the Explanatory Memorandum
to the General Law Reform Bill. These scenarios explicitly include some
involving surrogacy arrangements. However, while the House of Representatives
was debating and ultimately passing without amendment the General Law Reform
Bill, the government circulated proposed amendments to the Family Law
Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Family
Law Bill) some of which also address the definition of 'child' and 'parent' in
Commonwealth law.
1.17
Item 5 of proposed new Schedule 3A of the Family Law Bill would
effectively give parental status to the lesbian partner of a woman who
undergoes an 'artificial conception procedure'. This includes artificial
insemination and IVF.
1.18
Item 7 of proposed new Schedule 3A of the Family Law Bill would
introduce a new Section 60HB to the Family Law Act 1975 which would give
parental status under that Act to any person for whom an order has been made
under a prescribed surrogacy law of a state or territory.
1.19
The Parliament of Victoria is currently debating a government bill – the
Assisted Reproductive Treatment Bill 2008 (VIC) – which would allow male
homosexual couples, as well as single men or single women, to commission a
child through a surrogacy arrangement. There is a conscience vote on this bill,
but it was opposed by all Liberal and National MLAs, as well as by four Labor
MLAs.
1.20
These changes to the Family Law Act 1975 would give full parental
status in the circumstances set out. This parental status would survive any
break-up of the same-sex relationship, and give the non-biological 'parent' of
the child the right to shared parental responsibility and all the other rights
given to biological or adoptive parents.
1.21
These changes are radical. They appear to give approval and recognition
to procedures that facilitate bringing a child into the world which may deprive
the child of either a father or a mother.
1.22
In relation to surrogacy, current jurisprudence from the Family Court of
Australia decides cases which involve a surrogacy arrangement on the basis that
it is not bound by any such agreement whether legal or not in the relevant
jurisdiction. The cases are resolved – sometimes in favour of the birth mother
– on the sole basis of the best interests of the child.[3]
1.23
There has been no inquiry by a Senate committee into surrogacy. It would
be inappropriate for the Senate to adopt this amendment in the absence of any
such inquiry. The Standing Committee of Attorneys-General is currently considering
uniform national laws on surrogacy but the initial consultation paper for this
process has not yet been issued.
1.24
The Coalition policy on the same sex reform package is in-principle support
while being committed to 'resolutely oppose any measure which might open the
door or otherwise give legitimacy to gay adoption, gay IVF or gay surrogacy.'[4]
1.25
Each of the approaches to the definition of 'child' and 'parent'
so far proposed by the government involve measures which might open the door or otherwise give legitimacy to gay IVF
or gay surrogacy.
1.26
A better approach to ensuring equal treatment for children who have a
parent who is a party to a same-sex relationship would be to use the phrase 'child
of the de facto partner of the person' to refer to a child in these
circumstances while avoiding unnecessarily creating a new definition of 'child'
or 'parent.'
Recommendation 2
1.27
The Bill should be amended to remove all references to a child as 'the
product of the person’s relationship with that other person' and to replace
such references with the phrase 'child of the de facto partner of the person.'
Senator Guy Barnett Senator
Mary Jo Fisher Senator Russell
Trood
Deputy Chair
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